Re: Whether proposed drug testing policies submitted by the City
of League City and the University
of Texas are constitutional. (RQ-115, RQ-260)

Dear Gentlemen:

You have each submitted proposed drug testing policies. The
policies submitted by Mr. Farabee, on behalf of the Board of
Regents of the University of Texas System, would be applicable to
certain applicants and employees of the University of Texas
Health Center at Tyler and to faculty and resident physicians at
the University of Texas Medical Branch at Galveston; the one
submitted by Representative Hury would be applicable to employees
of the City of League City. You ask about the constitutionality
of the respective polices.

We note at the outset that attorney general opinions are
addressed to specific legal questions. It is outside the scope of
the opinion process to review the lengthy and detailed policies
you have submitted. Also, with the exception of a portion of the
League City policy, discussed below, that we believe to be
constitutionally invalid as a matter of law, determinations in
regard to the legality of the particular drug testing policies or
their application will involve questions of fact. See Harmon v.
Thornburgh, 878 F.2d 484, 490 n.9 (D.C. Cir. 1989), cert. denied,
110 S. Ct. 865 (1990) (noting that the "Supreme Court has quite
clearly eschewed an approach to drug testing based on bright
lines and clean analytic principles, and has instead mandated
case-by-case balancing of individual and societal interests"). We
cannot resolve questions of fact in the opinion process. We will,
therefore, generally limit this opinion to providing guidance by
reference to applicable law. We will also address the questions
you both raise about the validity of a prior opinion of this
office on the legality of drug testing, Attorney General Opinion
JM-1274 (1990). The policies submitted provide for testing by
urinalysis. Urinalysis compelled by the government is a search
for purposes of the Fourth Amendment of the United States
Constitution. National Treasury Employees Union v. Von Raab, 489
U.S. 656, 665 (1989); Skinner v. Railway Labor Executives Ass'n,
489 U.S. 602, 617 (1989). A warrant or probable cause, however,
is not necessarily required for employee drug testing. Skinner,
489 U.S. at 619. Rather, "where a Fourth Amendment intrusion
serves special governmental needs, beyond the normal need for law
enforcement, it is necessary to balance the individual's privacy
expectations against the Government's interests to determine
whether it is impractical to require a warrant or some level of
individualized suspicion in the particular context." Von Raab,
489 U.S. at 665-66. Before a governmental body adopts an
employee drug testing policy, it must first consider whether
testing "serves special governmental needs, beyond the normal
need for law enforcement." Id. at 665. (Footnote 1) Assuming
that it does, the governmental body must then determine whether
its interests in testing its employees are sufficient to outweigh
the privacy expectations of its employees. In making this
determination, it must consider the nature of the employees'
duties, taking into account that public employment alone is not a
sufficient basis for mandatory drug testing. Harmon, 878 F.2d at
490. It must also consider the extent to which the testing will
intrude upon the privacy interests of its employees. Von Raab,
489 U.S. at 665-66. (Footnote 2) The governing board of a
governmental body must make those determinations in the first
instance, subject to court review in the event its policy is
challenged.

As the United States Court of Appeals for the District of
Columbia has noted, however, public employment alone is "not a
sufficient predicate for mandatory urinalysis." Harmon, 878 F.2d
at 490; see also National Fed'n of Fed Employees v. Cheney, 884
F.2d 603, 613 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864
(1990). A "clear, direct nexus [must exist] between the nature of
the employee's duty and the nature of the feared violation."
Harmon, 878 F.2d at 490 (citing Von Raab). in Von Raab, for
example, a case in which the Supreme Court upheld drug testing of
customs service employees seeking promotions to positions
directly involving the interdiction of illegal drugs or requiring
the incumbent to carry a firearm, there was a clear nexus between
the employees' prospective duties and the risk that "they might
endanger the integrity of our Nation's borders or the life of the
citizenry." Von Raab, 489 U.S. at 679.3

We turn now to the particular policies at issue here.
Representative Hury submits the proposed drug testing policy of
the City of League City (hereinafter the "city policy") and
states that the city "is concerned about the effects of Attorney
General Opinion JM-1274 on the implementation of such a policy."
Attorney General Opinion JM-1274, which we will discuss more
fully below, concluded that a sheriff department's "random drug
testing" of deputy sheriffs and jailers by urinalysis would
violate constitutional privacy protections where no compelling
governmental objectives, or "specific demonstrable goals," were
shown that could not "be achieved by less intrusive, more
reasonable means." Attorney General Opinion JM-1274 at 4. We
understand Representative Hury's request, therefore, to put at
issue the "random" testing provisions of the city policy.

Article IV, section 4.01 of the city policy provides that
"[t]he City's Director of Administrative Services may require
that a test for the presence of drugs be conducted . . . on a
random . . . basis." Article X section 10.01 makes a similar
provision with respect to city employees generally, and article
X, section 10.02 provides that "[e]mployees in safety sensitive
jobs may be subject to random . . . drug testing on a routine
basis, as determined by the Director of Administrative Services."

We think a court would find that the city policy's
provisions for random testing of all city employees, as a matter
of law, run afoul of Fourth Amendment protections against
unreasonable searches. As discussed above, the federal courts
have indicated that public employment alone is not a sufficient
predicate for testing not based on individualized suspicion, but
that a sufficient nexus must exist between the particular
employee's duties and the feared consequences of the employee's
use of drugs. See Von Raab, 489 U.S. 656; Harmon, 878 F.2d 484;
National Federation of Federal Employees, 884 F.2d 603.
Determination, on the other hand, of the constitutionality of the
city policy's provisions for random testing of employees in
"safety sensitive" positions would, we
think, require a full fact-finding with regard to factors
relevant to a constitutional balancing test, such as the nature
of those "safety sensitive" positions and the city's interest in
testing those employed in such positions, and those employees'
"privacy expectations."

The proposed drug testing policy of the University of Texas
Health Science Center at Tyler (hereinafter the "center policy")
policy") provides for the testing of those applying for or
employed in certain "safety sensative" and "health care
positions" -- to wit, those whose duties involve 1) "the
diagnosis, treatment, or care of patients"; 2) "the operation of
equipment or the performance of a test or analysis that is
utilized in the diagnosis and treatment of patients"; 3) "access
to controlled substances"; 4) "access to cash"; or 5) "the lawful
use or possession of a firearm." Under the center policy, testing
may be required of employees in the above categories after they
have been involved in certain on-the-job accidents, observed
possessing or using alcohol or illegal drugs on the job, or
observed by a supervisor trained in such matters as exhibiting on
the job the appearance or behavior of one under the influence of
illegal drugs or alcohol. Also, the above categories of
employees, except those having "access to cash," may be tested on
a random basis to be "determined by the University." All
applicants tentatively accepted for employment in the above
categories are to be tested as a condition of employment. Center
policy Sections I-III.

The University of Texas System also asks about the legality
of pre-employment drug testing for faculty and resident
physicians whom the University of Texas Medical Branch at
Galveston thereinafter "UTMBG") requires to perform medical work
at the Shriners Burns institute of Galveston (hereinafter "SBI").
SBI, a private entity providing care to severely burned children,
has adopted a policy providing for drug testing new employees
including the UTMBG faculty and resident physicians working at
SBI. Under these circumstances, it is clear that UTMBG's
requiring faculty and resident physicians to work at SBI would
constitute government-compelled testing and would therefore be
subject to constitutional protections. Thus, in answer to your
question regarding the SBI policy, it would not be legally
permissible for UTMBG to require assignments and rotations in SBI
unless SBl's policy passes constitutional muster.

We note first that on the facts presented in Von Raab, the
court upheld testing of certain customs service employees
applying for transfer to positions whose duties involved the
carrying of firearms or access to controlled substances. National
Federation of Federal Employees upheld random testing of Army
civilian police and guards carrying firearms. Both these courts
reached their decisions, however, only after considering a
variety of other fact-bound matters such as the employees'
expectations of privacy or whether the employees' duties were
carried out in traditional office environments where they could
be monitored in a more routine manner.

More pertinent to the testing of medical personnel, Kemp v.
Claiborne County Hosp., 763 F. Supp. 1362 (S.D. Miss. 1991),
upheld mandatory testing of a scrub technician whose duties
involved "hands-on" patient care, including being present and
assisting during surgery. The court ventured to say that "any
hospital employee who is involved in direct, hands-on patient
care occupies a safety sensitive position" such that the
government has a strong interest in guarding against such
employees being drug-impaired. 763 F. Supp. at 1368. The Kemp
court again, however, considered various other factual
circumstances before concluding that the testing in that case was
constitutionally permissible, for example, that the employee in
question had a diminished expectation of privacy because she had
undergone routine physicals involving blood-testing and
urinalysis as a condition of employment and because she had
received prior notice of the drug testing at issue and signed a
consent form. Accordingly, although certain of the categories of
employees made subject to testing under the University of Texas
System polices have been held to be constitutional by courts in
other contexts, we think that determination of the
appropriateness of the categories established by these polices
would require fact-findings specific to conditions at the
University of Texas Health Center at Tyler, UTMBG, and SBI.

Similarly, although it seems likely that applicant testing,
as opposed to employee testing, would be given somewhat greater
rein by the courts, we are unable to conclude here that the
applicant testing provisions of the center policy, or the pre-
employment testing policies of SBI to which UTMBG faculty and
residents are subject, would withstand constitutional scrutiny as
a matter of law. We believe that a court would consider a range
of essentially fact-bound matters, similar to those factors
discussed above with respect to employee testing, before reaching
a conclusion. See Von Raab (testing of customs service employees
applying for transfer to certain job categories); Haas, The
Supreme Court Enters the "Jar Wars": Drug Testing Public
Employees, and the Fourth Amendment, 94 DICK L REV. 305, 341-42
(1990).

Finally, we turn to the question of the viability of
Attorney General Opinion JM-1274. In Attorney General Opinion JM-
1274, this office concluded that a sheriff's department's "random
drug testing" (Footnote 4) of deputy sheriffs and jailers by
urinalysis would violate privacy protections under the Texas
Constitution. The opinion based its conclusion on Texas State
Employees Union v. Texas Dep't of Mental Health & Mental
Retardation, 746 S.W.2d 203 (Tex. 1987) (hereinafter "TSEU"), a
case in which the Texas Supreme Court held that a state agency's
policy of subjecting its employees to polygraph examinations
violated privacy protections under the state constitution. Under
TSEU, to pass constitutional muster a governmental body must
demonstrate that 1) the intrusion is warranted to achieve a
compelling governmental objective; and 2) that objective cannot
be achieved by less intrusive, more reasonable means. Attorney
General Opinion JM-1274 concluded that a drug testing policy will
not pass constitutional muster where the government has shown no
governmental objective to justify the intrusion into the privacy
of its employees.

We believe that Attorney General Opinion JM-1274 correctly
concluded that the Texas Supreme Court would hold that the
collection and testing of urine implicates privacy interests
protected by the Texas Constitution. Although no Texas court has
addressed the constitutionality of a drug testing policy in a
reported opinion, we believe there is a strong likelihood that
Texas courts will construe the state constitution to place
broader limitations on drug testing of public employees than does
the federal constitution. See Heitman v. Texas, 815 S.W.2d 681
(Tex. Crim. App. 1991) (suggesting that the protections of
article I, section 9 of the Texas Constitution may exceed those
in the Fourth Amendment of the United States Constitution); State
of Texas v. Morales, No. 3-91-195-CV (Tex. App.--Austin, March
11, 1992, n.w.h.) (applying state constitutional privacy test
from TSEU in striking down state statute criminalizing certain
consensual adult sexual behavior).

Both requestors here have stated what they believe to be the
governmental objectives justifying the drug testing policies at
issue. (Footnote 5) We do not opine as to whether such
objectives might be achieved by less intrusive means, as such a
determination necessarily involves resolution of facts. The
governing boards that intend to implement these policies, or the
board of any governmental body implementing a drug testing
policy, should examine their respective polices in view of both
the federal and state constitutional standards discussed in this
opinion. This office recommends that any governmental body that
implements a drug testing policy make findings to support the
conclusion that its governmental objectives cannot be achieved by
less intrusive means, bearing in mind that decisions regarding
the constitutionality of all drug testing polices may be
challenged in court.

SUMMARY

The determination whether a particular drug testing policy
is constitutional involves questions of fact and is therefore
beyond the scope of an attorney general opinion. The governing
board of a governmental body must make those determinations in
the first instance, subject to court review in the event the
policy is challenged.

2. In making this determination, a governmental entity
might want to consider, for example, the extent to which it will
or will not be able to withhold test results and related
information from general public disclosure. See Open Records
Decision No. 594 (1991) (city employee drug testing ordinance
provisions cannot operate to exempt drug testing information from
required public disclosure under the Texas Open Records Act,
V.T.C.S. article 6252-17a).

4. The University of Texas system has expressed concern as to
the meaning of "random drug testing" as discussed in Attorney
General Opinion JM-1274 at 1. To clarify, a pre-employment or
employee policy that subjects all applicants for or employees in
specific positions to drug testing procedures without exception
would not be considered a "random" policy.

5. The League City policy states that it is
designed to eliminate the use of drugs and alcohol and their
effects in the workplace, so as to better provide for the general
health and safety of its employees." City Policy Sect. 101. The
University of Texas Health Center at Texas states that its
interest in testing certain categories of employees arises from
the "extraordinary safety hazard" posed by a "drug impaired
employee," the danger of "impairment" of the "hospital's
integrity and the risk of property loss."